Is Leaking a SCOTUS Opinion a Crime? The Law Is Far From Clear
Credit to Author: Andy Greenberg| Date: Tue, 03 May 2022 17:10:30 +0000
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The leak of a seismic draft opinion from the US Supreme Court that would overturn Roe v. Wade has somehow managed overnight to elicit roughly equal outpourings of anger from the right and left: The left has rallied to decry a decision that would overturn a 50-year-old cornerstone of reproductive rights. Conservatives, despite the historic victory the ruling would represent for their side, have meanwhile targeted their political outrage at a far more specific individual: the leaker.
Just hours after Politico published a draft of the majority ruling written by Justice Samuel Alito calling the Roe decision "egregiously wrong from the start" and overruling that five-decade-old precedent, figures across the right issued a chorus of calls for the investigation and prosecution of the anonymous source of the "illegal" leak. CBS News went so far as to report—somewhat vaguely—that it expects an investigation “involving the FBI” into the leak's source. And Chief Justice John Roberts has opened an investigation into the disclosure.
But all of that furor is undermined by an inconvenient legal truth: Leaking a Supreme Court decision doesn't actually seem to be a crime—at least not by any clear and undisputed definition. "Right now, it's unclear whether the leaker broke any law at all," says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation. "Even the people claiming this act is beyond the pale and the FBI must investigate haven't pointed to a definitive law this leaker allegedly broke."
Timm cites a lengthy Twitter thread published late Monday by the well-known UC Berkeley legal scholar Orin Kerr, who responded to the leak Monday night by pointing out that a Supreme Court draft doesn't meet any of the obvious criteria that would make it an illegal document to hand to a journalist: Most important, it's not classified, so leaking it doesn't open the leaker to prosecution under the Espionage Act. "As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion," Kerr concluded.
Of course, if the source is someone who hacked into a computer of, say, a Supreme Court justice or law clerk—or swiped the paper off their desk—the leaker could be prosecuted with computer fraud and abuse or theft, Kerr points out. But otherwise, despite the historical rarity of Supreme Court leaks and the politically radioactive nature of this one, Kerr argues there's no slam-dunk argument to federally prosecute the leaker.
Instead, Kerr suggests that any federal prosecutor seeking to make a case against Politico's leaker might have to resort to a far shakier statute, known as 18 U.S.C. § 641. That broad statute forbids the theft or misuse of government-owned "things of value"—a broadly written law seemingly designed at a surface level to prevent embezzlement or graft by those with access to the government's property. But whether it applies to information—and what kind of information, given to whom—remains an open question in federal law, with different circuit courts fundamentally disagreeing in their rulings.
"Legal scholarship provides little clarity regarding § 641’s interpretation; only a few scholars have even recognized § 641’s application to information," reads a Columbia Law Review article about the statute's use for prosecuting leakers, written by Jessica Lutkenhaus, an attorney focused on criminal defense at the law firm Wilmer Hale. "The circuits disagree about whether § 641 applies to information, and, if it does, what its scope is: What information constitutes a 'thing of value'?"
Sharing information is arguably fundamentally different from stealing "a thing of value," Freedom of the Press Foundation's Timm points out. "You can't steal a government Jeep or take something tangible or physical from government offices," Timm says. "But copying something can be construed as different from stealing something. You copy it, and the original thing is still there, and you just leave with papers that didn't exist before."
That ambiguity has led different federal courts to come to contradictory conclusions. A Fourth Circuit court, for instance, found in 1991 that a Department of Defense employee who left the DOD for a job at a defense contractor and took information with him was guilty of violating § 641. But a Ninth Circuit court has come to an opposite conclusion, finding in a 1959 case that "intangible" goods are not covered by § 641. That ruling was later applied in 1988 by the same circuit to the case of an information leaker, a naval officer accused of stealing computer punch cards related to secret encryption information. The court confirmed that the information itself was not covered by § 641—though his appeal was thrown out anyway because he'd stolen the physical punch cards that stored it.
Other circuit courts have come to conclusions somewhere in between, with some finding, for instance, that the § 641 does apply to information leaks but noting that this doesn't extend to those covered by the First Amendment's protections on free speech and freedom of the press—findings with direct relevance to Politico's Supreme Court leaker.
Several of the most notable leakers in history have been charged under 18 U.S.C. § 641, too, including Daniel Ellsberg, Chelsea Manning, and Edward Snowden. But the use of that law was overshadowed by their prosecution under the Espionage Act, since all three were accused of leaking classified secrets, and none set a clear precedent. Ellsberg's charges were dropped due to improper government conduct by the Nixon administration, and Snowden has yet to face trial. Manning was convicted on the 18 U.S.C. § 641 count she faced, but in a military court, not a civilian one.
All of that leaves the legal status of Politico's leaker—if they are identified—far from certain. But any confident argument that they committed a crime is on equally shaky terrain, argues Timm. And that's especially true in a case where the leaker appears to have leaked a document directly to the press, with a clear interest in making the information public.
"Even if prosecutors think 18 U.S.C. § 641 applies, I'd have serious First Amendment concerns with broadly applying it to anyone who leaks a government document to the press," Timm says. "Leaks to the press are as American as apple pie. And, in many cases throughout history, have furthered democracy rather than hindered it."